AUSTIN, Texas (May 7, 2017) – On Thursday, a Texas House committee passed a bill that would create a mechanism to review federal laws and end state cooperation with enforcement of those determined to violate the U.S. Constitution. This process would set the stage to effectively block some federal laws and acts in the Lone Star State.

“When reviewing a federal action, the committee shall consider the plain reading and reasoning of the text of the United States Constitution and the understood definitions at the time of the framing and construction of the Constitution by our forefathers before making a final declaration of constitutionality.”

Under the proposed law, if the committee determines a federal action violates the Constitution, both the full House and Senate would then vote on that determination. Passage of the resolution and the governor’s signature would constitute an official determination of unconstitutionality and would prohibit state enforcement of the act as follows.

(a) A federal action declared to be an unconstitutional federal action under Section 393.004 has no legal effect in this state and may not be recognized by this state or a political subdivision of this state as having legal effect.

(b) The state and a political subdivision of the state may not spend public money or resources or incur public debt to implement or enforce a federal action declared to be an unconstitutional federal action.

(c) A person authorized to enforce the laws of this state may enforce those laws, including Section 39.03, Penal Code, against a person who attempts to implement or enforce a federal action declared to be an unconstitutional federal action.

On Thursday, the House Committee on State & Federal Power & Responsibility approved the measure with a 5-2 vote.

EFFECTIVE

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides an extremely effectively method to render federal laws, effectively unenforceable because most enforcement actions rely on help, support and leadership from the states.

Fox News senior judicial analyst Judge Andrew Napolitano agreed this type of approach would be extremely effective. In a televised discussion on federal gun laws, he noted that a single state refusing to cooperate with enforcement would make federal gun laws “nearly impossible” to enforce.

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

LEGAL BASIS

This legislation rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

TOOLKIT

Passage of this legislation would provide an expansive toolkit once a federal action has been deemed unconstitutional by the state. Immediately, the state would be required to withdraw all resources and cease any cooperation with enforcement or implementation of the action. Because the feds lack the resources to enforce all of their laws and run all of their programs, this would likely be enough to effectively end the federal action in Texas in most situations. But in the unlikely event that federal enforcement persists, HB2338 would give the state the option of prosecuting federal agents who attempts to implement or enforce a federal action deemed unconstitutional. This would be left to the discretion of the attorney general, prosecutors and law enforcement agencies.

Just because the state could prosecute feds doesn’t mean that such a step would necessarily be the right strategy, and leaving the AG, prosecutors and police prosecutory discretion, while setting the stage for tougher action, was a good strategic move. As Thomas Jefferson said to James Madison in a letter discussing the Kentucky and Virginia Resolutions, it clears a path “that we may hereafter do, what we might now rightfully do.”

WHAT’S NEXT

HB2338 now moves to the Calendars Committee where there is a limited time to get it moved forward. The deadline for Calendars to vote a bill out is Tuesday, May 9, at 10 p.m. The deadline for a second reading on the House floor is midnight, Thursday, May 11. Missing either deadline means the bill would be dead this session. If you live in Texas, contact the members of the Calendar Committee and urge them to vote yes on HB2338.

Activists in Texas provided the following instructions.

There are two ways to reach committee members — phone calls and office visits. Office visits using the card system is probably the most effective. If you can visit the capitol and spend about an hour visiting eight offices to fill out a card Saturday, or Monday, please do so. Make phone calls if you cannot.

We assume that no Democrats need be contacted as that will only bring their attention to stopping it, and there is no need to contact the two members of the State & Federal Responsibility & Power Committee who voted to get HB 2338 to Calendars (King and Paddie), so here are the eight offices you need to contact:

Dist Rep Office Phone (512-463-xxxx)

Numbers in parentheses are the last four of their phone number

32 Todd Hunter EXT E2.148 (0758)Hunter is Chair (E2.148 is off the hallway right across from E2.210)